Recently, Delta Air Lines made headlines when it announced that it was tightening its rules for transporting service and support animals in an effort to reduce misbehavior by dogs and other creatures that air carriers are required by law to allow on board. According to Delta, customers were attempting to fly with comfort turkeys, gliding possums, snakes, spiders, and the new rules were designed to rein in misbehavior by these flying creatures.
For most employers, the only thing scarier than flying snakes and spiders is the thought that employees might show up at work claiming that they need to have Fido, Fluffy or Snake-eyes close at hand. Fortunately, the accommodation standards governing air carriers like Delta differ from those governing employers under the American’s with Disabilities Act (“ADA”). Nevertheless, employers are too often confounded by accommodation requests relating to animals. While the exact contours of the law are not entirely clear, there are some general guidelines that will help any employer assessing an accommodation request relating to having an animal at work.
Service Animals vs. “Support” Animals
A “service animal” is specifically defined by a portion of the ADA regulations applicable to “public accommodations.” Specially, it means a dog that is specifically trained to do work or perform tasks for the benefit of an individual with a disability. 28 C.F.R. § 36.104. That is, the animal is trained do work or perform tasks for the benefit of an individual with a disability, such as a seeing eye dog, hearing or signal dog, or a psychiatric service dog.
The definition of “support animal” is much less exacting; it generally includes emotional support animals, comfort animals, and therapy animals. Unlike a service animal, a support animal is not limited to dogs, it is not required to have specific training, and its work or tasks need not be directly related to the individual’s disability.
The distinction is critical because the ADA does not specifically address “support” animals. This is not to say that an accommodation obligation with respect to “support” animals. It means only that the law is unclear in this area and employers would be best-served to follow the interactive process. The “interactive process” is a mechanism employers and employees use to determine whether there is an accommodation that will allow a particular disabled individual to perform the essential functions of a particular job. It may be useful to think of the interactive process as a dialogue with an employee about a specific issue-what he or she needs to perform the essential functions of a particular job and whether the employer can or will provide it.
Accommodating Employees with Service Animals
While every accommodation request should be addressed via the interactive process, requests related to service animals are more likely to be considered a reasonable accommodation. In fact, the comments from the original EEOC regulations following the ADA’s passage in 1992, specifically mention “guide dogs” as a possible accommodation. Courts reviewing this issue generally agree that barring service dogs into the workplace may violate the employer’s accommodation obligation under the ADA.
Nevertheless, if the disability is not obvious, such as an employee with Post Traumatic Stress Disorder (PTSD), the employer may request medical documentation to establish the existence of a disability and how the animal helps the individual perform his or her job. The employer should then engage in an interactive process with the employee designed to address the extent to which co-worker allergies or fears might pose issues and how such issues can be alleviated.
Of course, a request for a service animal need not be granted if it poses an undue burden or safety risk to the employee or others. For example, one federal appeals court ruled that an employee’s request to have his service dog present at his factory job posed legitimate safety concerns for the employer.
It is critical to note that employers can not insist of “certification” of service animal status because no such process exists. While some registries exist on a voluntary basis to assist employers in identifying bona fide service animals, there simply is no centralized registration service that issues verified service animal credentials.
Analyzing Accommodation Requests for “Support” Animals
Even though therapy or emotional support animals are not addressed by the ADA regulations relating to employment, employers should respond to such requests like it does with any other accommodation request – namely, by engaging the interactive process.
First, the employer should request information about the employee’s disability and work restrictions. The request should also include information about the animal, including: how the animal helps the individual perform his or her job, whether the animal is housebroken, whether the animal is vaccinated in accordance with state and local laws, how it will be cared for during the day, and whether there are any concerns regarding workplace safety.
Also, remember that the ADA does not require employers to adopt the accommodation that the employee seeks, nor must they choose what seems to be the most reasonable option. Therefore, employers should research and discuss with the employee any potential alternative accommodations in case there might be another effective means of accommodating the employee with less inconvenience than allowing a support animal onto the premises.
Courts have brought a fair degree of skepticism to the evaluation of whether support animals are “reasonable” accommodations. One court required proof that the therapy or emotional support animal alleviated one or more of the restrictions afflicting the disabled employee and eventually ruled that the employee had not established a sufficient proof that having a 10-week old puppy at work would reduce the stress that aggravated his Crohn’s disease.
Requests for support or comfort animals in the workplace are increasing. While you might have visions of countless animals running amok in your shop, don’t just dismiss the request out of hand. Instead, engage in a valid interactive process to determine whether the employee has a valid basis for seeking accommodation. If so, work collaboratively to ascertain whether the request is reasonable, whether alternatives exist and whether a workable solution can be found.